DESI LIANA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1182/2024

[2024] HKCFI 2695

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1182 OF 2024

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 22 February 2024 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of Indonesia who last arrived in Hong Kong on 27 November 2022 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 30 June 2023 or within 14 days of its early termination, but when her employment was prematurely terminated on 20 December 2022, she did not depart and instead overstayed, and was arrested on 11 July 2023 for undertaking unauthorized employment for which she was subsequently convicted and sentenced to prison for 15 months, during which she raised a non-refoulement claim for protection to the Immigration Department on the basis that if she returned to Indonesia she would be harmed or killed by her former husband over their monetary dispute.

2.  The Applicant was born and raised in Kediri, Indonesia. After leaving school she worked as a domestic helper in Singapore and Taiwan until 2016 when she returned to Indonesia to marry her husband and raised a family with a son in her home district.

3.  Soon she discovered that her husband often indulged in drinking and gambling, and when drunk he would be abusive towards her by hitting her at will, and as he also often failed to find job, the Applicant in October 2018 started to come to Hong Kong to work as a foreign domestic helper, and to remit money to her husband in Indonesia to support their family.

4.  However, in early 2022 the Applicant discovered that her husband was having an affair with another woman in Indonesia, and after having confronted him on the phone and insisted to divorce him, to which her husband demanded to be compensated with money, and so the Applicant agreed to continue to send him money provided that he would cooperate in their divorce.

5.  Eventually the Applicant obtained her divorce in July 2022 with the assistance of her lawyer, and shortly thereafter she stopped sending money to her former husband, whereupon he became furious and threatened on the phone to kill her when she returned to Indonesia, and so after her last employment was prematurely terminated on 5 December 2022, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 21 September 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 19 October 2023 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her former husband upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her former husband to seriously harm or kill her other than to press her for money, that in any event it was a private monetary dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 279 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Bandung or Palembang where it would be difficult if not impossible for her former husband to locate her.

8.  On 2 November 2023 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 25 January 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 22 February 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her former husband that caused her to overstay in Hong Kong to seek protection, that even if her claimed of fear of harm from her former husband were true that there was no reliable evidence of any real intention of him to seriously harm or kill her other than to press her for money, and that in any event it was a private monetary dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her former husband that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 23 July 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for her intended challenge, of which she confirmed at the hearing as follows:

(1) That the Board’s decision in rejecting her claim and appeal was internally inconsistent and logically flawed rendering the decision unlawful on the ground of irrationality;

(2) That the Board reached a decision that was not reasonable or fair as required by the Wednesbury test;

(3) That the Board failed to properly appreciate or give sufficient weight to the presence of state acquiescence in the Applicant’s case which led to an unfair rejection of her non-refoulement claim;

(4) That the Board failed to recognize that the Applicant’s right to life must be protected from the extra-judicial killing that she may face if deported.

11.  By then the Applicant was however out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

12.  As the last day of the three-month period for her to file her Form 86 fell on 22 May 2024, the Applicant was therefore 2 months late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of 2 months must be considered as substantial and inordinate, for which she explained in her affirmation and at the hearing that she was then still in prison and had had to seek legal assistance with her application which accounted for the delay. As the record shows that the decision as sent on the same day of 22 February 2024 to her at the Lo Wu Correctional Institution where she was then being held and without being returned through undelivered post, while assistances would be available from the welfare officers stationed there, I am not satisfied that the Applicant has provided a good or valid justification for her such serious delay.

14.  As for the merits, if any, of her intended application, those grounds put forward by the Applicant are all just some bare and vague assertions containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or what relevancy were state acquiescence or extra-judicial killings to the Applicant’s case when on the factual basis of even her own case that it was a private monetary dispute between her and her former husband only without any state or official involvement or any political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

15.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1